Court: TransCanada doesn't have to pay landowner attorneys

By GRANT SCHULTE

Mar. 10, 2018

LINCOLN, Neb. (AP) — The developer of the Keystone XL pipeline doesn't have to reimburse attorneys who defended Nebraska landowners against the company's efforts to gain access to their land, the state Supreme Court ruled Friday.

The high court's ruling resolves a dispute that was triggered when TransCanada Inc. filed eminent domain lawsuits against 71 Nebraska landowners in 2015, only to drop them later amid uncertainty over whether the process it used was constitutional.

"We conclude that none of the landowners established that they were entitled to attorney fees," Chief Justice Michael Heavican wrote in the opinion.

Omaha attorney Dave Domina argued that TransCanada owes his clients about $350,000 to cover their attorney fees. Domina said the landowners clearly asked for representation in the eminent domain cases, and TransCanada should pay their attorney fees because the company effectively lost those cases.

A TransCanada attorney, James Powers, argued that the landowners failed to prove that they actually paid or were legally indebted to Domina or his law partner, Brian Jorde.

Domina said he respected the decision but was disappointed for his clients.

"They have battled this pipeline so honorably and deserve so much credit," he said. "When the history of Nebraska is written, these landowners will be one of its brightest spots. And the decision to risk the environment will be one of the most regrettable of our time."

The proposed $8 billion, Canada-to-Texas pipeline has faced intense opposition from environmental groups, some property owners along the route and Native American tribes, who consider it a threat to their groundwater and property rights.

But the pipeline has won support from congressional Republicans and President Donald Trump, who approved a federal permit for the project. Business groups and some unions endorsed the project as a way to create jobs and reduce the risk of shipping oil by trains that can derail.

If completed, the pipeline would carry oil from Canada through Montana, South Dakota and Nebraska, where it would connect to an existing pump station in Steele City, Nebraska. From there it would continue through Kansas, Oklahoma and Texas until it reaches Gulf Coast refineries.

TransCanada dropped its eminent domain claims in Nebraska after pipeline opponents raised significant questions about whether the law the company invoked could survive a court challenge. The law passed in 2012 allowed then-Gov. Dave Heineman to approve the pipeline route through Nebraska, bypassing an independent state commission that was legally entitled to review such projects. Heineman, a Republican, supported the pipeline.

TransCanada chose the more traditional route when it submitted a new application to the Nebraska Public Service Commission. The commission in November approved a slightly different route than the company would have preferred, prompting another appeal from landowners that's expected to end up before the Nebraska Supreme Court. The court is expected to hear oral arguments in the case this fall.